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DOJ Defends DOMA Again


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The U.S. Department of Justice Friday filed a motion to dismiss Gill v. Office of Personnel Management -- a legal challenge to the Defense of Marriage Act filed by Gay and Lesbian Advocate Defenders.

GLAD’s legal director, Gary Buseck, said the new brief  hewed closely to the last DOJ brief, filed in the California case Smelt v. United States, which also seeks to overturn DOMA.

“It looks pretty much like the Smelt reply,” Buseck said. “They have honed their argument down to the notion that the federal government can take a wait-and-see, hands-off approach while letting the states experiment with this novel form of marriage.”

In Buseck’s eyes, that doesn’t really address the crux of the Gill lawsuit.

“The federal government for the whole history of our country has deferred to the states to determine who is ‘married.’ DOMA is an unprecedented step away from that regime,” he said. “The simple point of our argument is that now, Massachusetts has a single class of married people that includes different-sex couples and same-sex couples -- and yet the federal government now says part of that class of people we treat as ‘married’ and part of that class we refuse to treat as ‘married.’”

Filed in March by GLAD on behalf of six same-sex couples and three men whose spouses have died, Gill specifically targets the third section of DOMA, which prohibits the federal government from recognizing same-sex marriages. The suit challenges the federal government’s refusal to provide same-sex couples with spousal protections in Social Security, federal income tax, and federal employee and retiree benefits.

Friday's brief reiterated two major assertions DOJ made in its most recent Smelt brief: that DOMA is on its face a discriminatory law and that there’s no justification for DOMA based on procreation or child rearing.

Buseck said GLAD and DOJ will now go through a period of responding to each other’s briefs, and he speculated that the first hearing in the case probably wouldn’t be held until early 2010.


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Reader Comments
  • Name: AJ
    Date posted: 9/23/2009 2:23:36 PM
    Hometown: Seattle

    Comment:

    You gotta give the people, what they want: Universal Life Church - www.TheMonastery.org In April of 2007 the Presiding Chaplain of The Monastery in Seatte, WA - G. Martin Freeman, released the following ecclesiastical proclamation on behalf of *millions of registered ULC ministers in the United States: Ecclesiastical Proclamation of The Monastery: “All persons with love for one another have a religious and constitutional right under the 1st Amendment of the United States, to the Sacrament of Marriage. Such is invoked under natural, primal, and religious law. Given this understanding, we hold that it is a denial of religious rights by the United States government to restrain our ministers from their constitutional right to perform the ritual of the Sacrament of Marriage to consenting adults, regardless of sexual design.” - Adopted and Approved 04/12/2007 Full Article: http://forum.themonastery.org/index.php?showtopic=2411 Celeb Ministers: http://universallifechurchministers.org/

  • Name: antonio
    Date posted: 9/21/2009 10:21:30 AM
    Hometown: Los Angeles

    Comment:

    Obama can kiss my ass.

  • Name: Roger Burr
    Date posted: 9/21/2009 10:17:28 AM
    Hometown: Marble Hill, MO

    Comment:

    You're welcome, Karen... And you raise some DARN GOOD points. Thank you!

  • Name: Karen Karpenter
    Date posted: 9/20/2009 10:55:02 PM
    Hometown: Jacksonville, FL

    Comment:

    I thought after 9/11 the Federal Government gave Federal benefits to gay partners with civil unions. So, isn't that a precedent? But, yes, it really gets down to queers need to do more political pressure and work. And, I for one am mixed on this. I live down South and see racist people using health care to try to tear down Obama because they can't stand having a Black president; and it's not totally their fault because the media here is so dominated by Fox and the misinformation is incredible, but... As an anti-racist lesbian, I see racism as a lot bigger an issue than homophobia. Of course, if I or my spouse would die B4 gay marraige and Fed benefits, then I'd be a screaming lunatic... I also feel really terrible for all the innocent people the US is killing in Iraq and Afghanistan... Most people reading the Advocate are of a higher income than me and undoubtedly have homophobia as their primary oppression, but I just wanted to share. Thanks for listening.

  • Name: Don
    Date posted: 9/20/2009 3:14:11 PM
    Hometown: Evansville

    Comment:

    Get real, Jack Nasty. "Enforcement" is not the issue with DOMA. DOMA is not a criminal statute. It prevents the federal government from recognizing same sex marriages for the purpose of any federal benefit. If he fails to "enforce" DOMA, nothing really happens. If Obama's administration were to recognize same sex marriages, and grant benefits to the same sex spouses, he would be in direct violation of the law, and would be subject to impeachment.

  • Name: Don
    Date posted: 9/20/2009 3:13:52 PM
    Hometown: Evansville

    Comment:

    Get real, Jack Nasty. "Enforcement" is not the issue with DOMA. DOMA is not a criminal statute. It prevents the federal government from recognizing same sex marriages for the purpose of any federal benefit. If he fails to "enforce" DOMA, nothing really happens. If Obama's administration were to recognize same sex marriages, and grant benefits to the same sex spouses, he would be in direct violation of the law, and would be subject to impeachment.

  • Name: Roger Burr
    Date posted: 9/20/2009 12:45:41 PM
    Hometown: Marble Hill, MO

    Comment:

    It appears our 'Fierce Advocate' has finally shown his TRUE colors. Obama is NOT interested in helping the LGBT community, despite his campaign promises to the contrary. Moreover, his concern for the Republicans is further alienating many Democrats and Independents who voted for change; something he has not, thus far, delivered. If things don't change soon, the 2012 Presidential election might mirror that of 1912. In THAT election the Republican vote split between Bill Taft and Teddy Roosevelt. As a result the Democrat, Woodrow Wilson, was elected. There is all ready talk of a Democrat challenging Obama for the 2012 nomination. We MAY just see history repeating itself.

  • Name: A.L.
    Date posted: 9/19/2009 11:57:59 PM
    Hometown: Charlotte

    Comment:

    Ahh...Obama...you would think you would understand the plight of not being treated equally. But, I guess your religion is more important. I mean, after all, separation of church and state is only applicable to you when it is good for you. Then again, what kind of world would we live in if gay people were allowed to marry? One of equality? Who wants that? Oh, and Commander in Chief - thanks for all those empty promises of repealing Don't Ask, Don't Tell. Sure, take your time. Americans only die for their freedom - why not keep denying them the freedom to serve openly? It's not like they're risking their lives for you or anything. So brave in standing up for your country aren't you?

  • Name: Jack Nasty
    Date posted: 9/19/2009 7:15:45 PM
    Hometown: Edmonds

    Comment:

    Presidents and Attorneys General can challenge laws they believe to be unconstitutional in court. They can also refuse to enforce laws they believe to be unconstitutional. There is no requirement that they defend unconstitutional laws. Should Obama and Attorney General Holder decide to do so, they could oppose DOMA and force Congress to provide its own defense of the law. Precedents include: United States v. Lovett, 328 U.S. 303 (1946), Morrison v. Olson, 487 U.S. 654 (1988), and Myers v. United States, 272 U.S. 52 (1926). The fact is, Obama is defending anti-gay law that he promised to repeal during the 2008 campaign. Overturning a law in the courts is every bit as effective as repealing it through legislation. What has become apparent from Obama's defense of DOMA is that Obama suffers from what I call the Civil Rights for Some Syndrome.

  • Name: Jack Nasty
    Date posted: 9/19/2009 7:09:51 PM
    Hometown: Edmonds

    Comment:

    Presidents and Attorneys General can challenge laws they believe to be unconstitutional in court. They can also refuse to enforce laws they believe to be unconstitutional. There is no requirement that they defend unconstitutional laws. Should Obama and Attorney General Holder decide to do so, they could oppose DOMA and force Congress to provide its own defense of the law. Precedents include: United States v. Lovett, 328 U.S. 303 (1946), Morrison v. Olson, 487 U.S. 654 (1988), and Myers v. United States, 272 U.S. 52 (1926). The fact is, Obama is defending anti-gay law that he promised to repeal during the 2008 campaign. Overturning a law in the courts is every bit as effective as repealing it through legislation. What has become apparent from Obama's defense of DOMA is that Obama suffers from what I call the Civil Rights for Some Syndrome.

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